Summary Offences (Liquor Offences) Amendment Bill

by Vickie Chapmanon September 05, 2018

Second Reading

The government is today introducing the Summary Offences (Liquor Offences) Amendment Bill 2018. Members may be aware that this bill has previously been before the parliament in a different life, with broader powers for the search of vehicles in specific areas. Notably, the broad search provisions the former government heavily favoured have not made their way into this bill.

Importantly, this bill contains a number of reforms that create new offences and provide additional investigative powers to reduce the incidence of the unlawful sale of liquor and supply of liquor to vulnerable communities where the possession and consumption of liquor is generally prohibited. This is colloquially known as 'grog running'. The grog running trade often leads to alcohol-related harm, including serious violence, disorder, antisocial behaviour and resultant medical problems for many who live in vulnerable communities.

Over the past 15 years, there have been many occasions where I have consulted with community members, particularly parents, who are concerned about the consumption of liquor and the criminal activities that often arise with such behaviour. It has become clear that the communities are seeking protection for children and protection from family and domestic violence that often follows from excessive consumption of alcohol. Consultation with relevant agencies confirms that, sadly, current strategies designed to combat grog running are falling short and, in some instances, a long way short of meeting the challenges.

Existing measures include those under the Liquor Licensing Act 1997, such as offences, restrictive licence conditions on the sale and supply of liquor and barring orders. In addition, both the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 and the Aboriginal Lands Trust Act 2013 contain provisions regarding the possession and consumption of liquor in specific areas. It is clear, therefore, that new and different solutions are needed in order to address the issue and effects of grog running in many of our remote communities. This bill seeks to do so.

The main features of this bill are as follows. There are new offences in the Summary Offences Act 1953 relating to possessing or transporting liquor for the purpose of sale with a rebuttable presumption that possession above a prescribed quantity of liquor is for the purpose of sale. It would be the responsibility of the one found in possession to establish that it was not for sale, rather than the reverse that would normally apply.

There is also a new offence in the Summary Offences Act 1953 for a person who supplies liquor or possesses or transports liquor with intention to supply it to a person in a dry community. There is a rebuttable presumption that, where an offender possessed or transported liquor in a designated area, the possession or sale was for the purpose of supply. So, again, the reverse of onus is proposed.

Designated areas are determined by the minister and must not be more than 20 kilometres from the boundary of a prescribed area. Prescribed areas are dry areas within the Liquor Licensing Act 1997; trust land, within the meaning of the Aboriginal Lands Trust Act 2013; or 'the lands' within the meaning of the Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 or 'the lands' within the meaning of the Maralinga Tjarutja Land Rights Act 1984.

There is also a new offence in the Liquor Licensing Act 1997 for a holder of a licence who sells liquor to a person reasonably believed to be an unlicensed seller intending to sell liquor and where the unlicensed seller then sells that liquor. There is also a further new offence in the Liquor Licensing Act 1997 for an occupier or person in charge of premises who knowingly permits the unlicensed sale of liquor on those premises.

There are amendments to the Criminal Investigation (Covert Operations) Act 2009 so that serious criminal behaviour, for the purposes of undercover operations approved under that act, include offences against section 29 of the Liquor Licensing Act. These include the two new offences that I have outlined and the new offences in proposed sections 210B and 210C of the Summary Offences Act 1953.

There are also amendments to the Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007 so that a forfeiture offence, for the purposes of forfeiture and impounding of offenders' vehicles, includes the new offences in proposed sections 210B(1) and 210C(1) of the Summary Offences Act 1953.

As I have previously mentioned, the former government introduced a similar bill that lapsed on the dissolution of the parliament. However, this bill differs from the former government's bill in two major areas. Firstly, the limit in relation to the designated area of land deferred to in the proposed section 210D(3) has been reduced from 100 kilometres to 20 kilometres. The Marshall government sees the 100-kilometre limit as excessive and unnecessary, and it would encompass a large geographical area.

Secondly, some of the additional police powers that were proposed have been removed from this bill. In particular, the police power to stop a vehicle, detain and search a vehicle and direct a person to open any part of a vehicle without reasonable suspicion has been removed. The power to seize and dispose of property suspected on reasonable grounds as intended to be used for the purpose of committing an offence or as affording evidence as to the commission of an offence has also been removed.

The government believes that these powers are excessive and the power of police to stop, search and detain should be the same for every other offence, being those powers in the Summary Offences Act 1953. It is also the government's belief that the current powers in the Summary Offences Act 1953 achieve the appropriate balance between the need for police officers to enforce the law and for community members to go about their daily activities without fear that they will be stopped and searched without reasonable suspicion.

When the former bill was debated, I was pleased to work with the AHA, specific stakeholders in the relevant geographical areas and also the Aboriginal Legal Rights Movement. When consulting with the ALRM previously, they provided a positive response to where the bill was directed and the problems it was aimed at. In its submission to the former government, the ALRM concluded by saying:

The bill represents a significant recognition by government of the need to criminalise the practice of grog running to remote Aboriginal communities. But it does so in a way which may well have unintended consequences, and it does so in a way which gives police unprecedented powers of search and seizure which are inconsistent with existing law, and represent an unacceptable infringement of the civil liberties of the citizen.

That was from the ALRM to the previous government in relation to their bill.

I am very pleased to introduce a bill today which reflects that feedback, provided to both this government and the former government, and which deals with concerns previously raised in this place in order to deliver positive and better results in our remote communities. Can I acknowledge and thank members of SAPOL who not only provided further briefings on this matter but were quite agreeable to entering into discussions as to how we might resolve some of those matters that were in dispute.

Ultimately, this is a bill, in these terms, which I understand and fully accept they are happy with, to the extent that they see grog running as a particular problem that needs to be addressed. After discussing the removal of extra police powers and the reduction from a 100-kilometre zone to 20 kilometres, they are still happy for this bill to go forward as it is. I thank them for their careful consideration of these matters, identifying the highest priority here, that is, that we protect vulnerable people and ensure that we do not extend that beyond what is necessary. In conclusion, I commend the bill to the house and seek leave to insert the explanation of clauses in Hansard.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Summary Offences Act 1953

4—Insertion of Part 3B

New Part 3B is proposed to be inserted:

Part 3B—Liquor etc

21OA—Interpretation

Definitions are inserted for the purposes of the Part. The definitions of liquor and sale are the same as in the Liquor Licensing Act 1997.

The other definitions relate to designated areas—certain offences and powers under the Part apply in designated areas—and prescribed areas.

21OB—Possession, transportation of liquor for sale

This section sets out an offence of possessing or transporting liquor for the purpose of sale (as defined). If such an offence is committed, liability is extended to—

a person (if any) on whose behalf liquor is possessed or transported; and

a person who would derive a direct or indirect pecuniary benefit from the sale of the liquor who knew, or ought reasonably to have known, that the first person was in possession of or transporting the liquor for the purpose of sale.

The offences in subsections (1) and (2) do not apply to the possession or transportation of liquor for the purpose of a sale that may lawfully be made.

A defence is provided for in relation to the offence set out in subsection (3).

An evidentiary provision provides that if, for an offence against subsection (1) or (2) it is proved that the amount of liquor possessed or transported exceeds the prescribed amount, it is presumed, in the absence of proof to the contrary, that the liquor was possessed or transported (as the case requires) for the purpose of sale.

21OC—Supply etc of liquor in certain areas

This section sets out an offence relating to the supply of liquor to a third person who is in a prescribed area. The offence extends to the transportation of liquor with the intention to supply, or believing that another person intends to supply, the liquor to the third person and to the possession of liquor with the intention to supply it to the third person.

An evidentiary provision provides that if, for an offence against the section, it is proved that a person possessed or transported liquor in a designated area, it is presumed, in the absence of proof to the contrary, that the person possessed or transported the liquor intending to supply it to a third person.

21OD—Designated areas

This section empowers the Minister (by notice published in the Gazette) to designate an area of land as a designated area for the purposes of the Part. A designated area cannot include land that is more than 20km from the boundary of a prescribed area. Notices published under this section must be tabled in Parliament and may be disallowed by either House of Parliament.

21OE—Evidence

Evidentiary provisions relating to proving that a specified substance is liquor and that a statement on a sealed liquor container contains liquor of the description and in the quantity and concentration stated are provided for.

21OF—Regulations

This section allows for the regulations to disapply the Part or provisions of the Part in prescribed circumstances or to a specified class of persons or to provide for exemptions from the Part or provisions of the Part for classes of persons or activities.

Certain of the new offences provided for in the measure (being offences against section 29 of the Liquor Licensing Act 1997 and offences against section 21OB or 21OC of the Summary Offences Act 1953) are added to the definition of serious criminal behaviour.

Part 2—Amendment of Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Act 2007

2—Amendment of section 3—Interpretation

Certain of the new offences provided for in the measure (being offences against section 21OB(1) or 21OC(1) of the Summary Offences Act 1953 (defined as designated liquor offences)) are added to the definition of forfeiture offence for the purposes of clamping, impounding and forfeiture of motor vehicles.

Part 3—Amendment of Liquor Licensing Act 1997

3—Amendment of section 29—Requirement to hold licence

A new provision provides that an occupier or person in charge of premises on which liquor is sold in contravention of existing section 29(1) who knowingly permits the sale is guilty of an offence.

In addition, if a prescribed person (which is defined) sells liquor to another person and the prescribed person reasonably believes, or ought reasonably to believe, that the other person intends to sell the liquor in contravention of existing section 29(1) and that other person then sells the liquor in contravention of subsection (1), the prescribed person is guilty of an offence.